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At last week’s football game nine students showed up with letters painted on their chest. When they lined up the word they spelled out basically called the other team homosexuals (of course they didn’t use such a polite word for their sexual preferences). They were told by campus police that if they spelled out an offensive phrase or word they would be ejected. During the game, they did, and they were. Now there’s a push by the GLBT community on campus for additional sanctions to be imposed on the students involved under the campus hate speech code. There’d be a hearing and the students could be suspended or possibly expelled. My question to you: if such a punishment is imposed, is it a violation of their rights, and what should they do about it?

— Allen, Professor, Public College or University, Nebraska

Allen:

Your question cuts to the heart of one of the trickiest aspects of constitutional law: the fact that the ideals of freedom and equality are very often in direct conflict. Trying to figure out which should trump the other is sometimes nearly impossible. This is one of those cases that falls right on the line.

Still, I’m betting if it came to litigation, freedom of speech would win out. At least that’s the way things have gone most of the time an issue like this one has come up.

The case that applies most clearly to your situation involves a hate speech code that was enacted by the University of Wisconsin in 1991. There had been some incredibly tasteless racial incidents at UW in the prior years (including a fraternity sponsored "slave auction" that featured members in black-face). So the university passed a rule that prohibited addressing any specific individuals with "racist or discriminatory comments" that:

"Demean the race, sex, religion, color, creed, disability, sexual orientation, national origin, ancestry or age of the individual or individuals."

Several student groups challenged the rules in court based on the First Amendment. The school’s lawyers agued that the rules fell under the ‘fighting words’ exception to the Constitution (the First Amendment doesn’t protect language that will incite immediate violence). The court didn’t buy it and struck the rules down as unconstitutional.

That outcome is pretty common. Almost every time a speech code has been challenged in the courts, the schools lost and the rule has been changed or deleted outright from the books.

I don’t know that the exact language of you school’s code. But chances are, if the issue were litigated it would be found to violate the First. I’m assuming that none of the nine involved students have the resources (or the desire) to take their case to all the way to the federal courts.

So, if I were one of the accused students, I’d rely on the work done in the previous cases. Get a copy of the Wisconsin case (the title is UWM Post v. Board of Regents of University of Wisconsin) and a few of the other speech code decisions (there’s lot of good information on the issue at F.I.R.E.’s Web site, www.thefire.org). I’d use the arguments and outcomes in those cases as the basis for my defense at the on-campus hearing.

I’m betting that "sixteen federal judges think what you’re doing here is unconstitutional" will be a pretty convincing argument.